Friday, July 31, 2009

Readers may know that the "RAE" (e.g., Research Assessment Exercise) is being replaced by a "REF" (e.g., Research Excellence Framwork) in the UK. All "units of assessment" (in essence, all departments) are assessed on the quality of their research. This is based upon the quality of publications, graduate student numbers, and other factors.

Previously, the RAE gave marks for the "esteem" each department held. This appears to be replaced now by "impact" -- so what's in a name?

The latest from the Times Higher Education is that "impact" will account for 20-30% of a subject's final result. This will be assessed during a five year period: 2008-12. The details are here. Departments would submit a narrative with a few "case studies" --- these would then be judged by "panels of academics and users."

There are several concerns . First, the academics who will judge impact may well be members of the relevant REF panel. If so, then this seems unproblematic. What does seem problematic is the selection of "users": who are they are (or, more specifically, who are they not)? If the "user" is, say, society in general, then who speaks to "impact" then? MPs? Much could hinge on which non-academics are chosen. Of course, the UK has a body that is thought to "represent" in some broad sense considered public opinion by experienced, distinguished persons. This body is the House of Lords and several hundred sit on its benches. This is surely too large a group for a research assessment. However, a group of five, ten, even fifteen may be better to "manage," but many critical voices will be left out --- and this may be a real concern for some departments.

My second concern is more serious. Almost one-third of a department's success in the REF will be judged upon the "impact" of its research over a five year period. Surely, departments wanting to score high will aim to produce immediate impact research with less regard for longer lasting impact. My reasons:

1. One reason why there may be less regard for longer lasting impact is that government policy changes so often. How can a department make plans for the future when -- in one assessment (RAE2008) - "impact" is not directly measured and a few years later -- in a different assessment (REF2013) -- it is. It is difficult to make long term plans when frequent changes are on hand.

2. A second reason is that, if the REF were to continue beyond 2013, the impact of research prior to each five year period may be relevant. We may think then that - eureka! - there is an incentive here to aim for long lasting impact. I doubt it. The system prioritizes making a big impact now in a current time period. An impact that is large overall, but measured over time may be less attractive for departments aiming to score high. Moreover, the impact of past research is research by department members: they may well leave. Departments prioritizing longer lasting impact may make more likely the poaching of staff who produce this research. While there will be incentives for departments to poach "stars" likely to score impact in the short term, this may be more difficult to coordinate given the more brief time period. Thus, again, there is an incentive for short term impact for maximum results.

Together, these concerns should be troubling. The government reminds us that universities should demonstrate "impact" on account of receiving public funds. If this is so, then why do universities seem singled out? Do we see MP's working harder to demonstrate their positive "impact" on account of their being 100% funded by tax payers? Hardly. (Instead, we had the expenses fiasco.)

I cannot help but think the current drive for universities to demonstrate "impact" is more about universities doing more for less. The pressure here is deliver even more bang for the government's buck. Of course, there can hardly be any problem with strongly encouraging -- even demanding -- that universities deliver the very best service possible. But this is not about that.

If the government wants British universities to perform even better, then the trick is not writing "case studies" and narratives about "impact" that will appear on yet another website the public may not read. Instead, it should invest far more in higher education than it does --- and with fewer strings attached. Politicans may be like the REF2013 and given to short term thinking, but a highly educated public is a great public good with long term benefits. If the "impact" of such benefits is not readily discernible to ministers, then I highly doubt case study narratives will do the trick . . . although I hope to be surprised.

Saturday, July 25, 2009

The right to a fair trial is often held as a central constitutional protection. It nevertheless remains unclear what precisely should count as a 'fair' trial and who should decide verdicts. This already difficult issue has become even more important given a number of proposed reforms of the trial, especially for defendants charged with terrorism offences. This collection, The Right to a Fair Trial, is the first to publish in one place the most influential work in the field on the following topics: including the right to jury trial; lay participation in trials; jury nullification; trial reform; the civil jury trial; and the more recent issue of terrorism trials. The collection should help inform both scholars and students of both the importance and complexity of the right to a fair trial, as well as shed light on how the trial might be further improved.

This paper argues that Leif Wenar's theory of reparations is not purely forward-looking and that backward-looking considerations play an important role: if there had never been a past injustice, then reparations for the future cannot be acceptable. Past injustice compose the first part of a two-tiered theory of reparations. We must first discover a past injustice has taken place: reparations are for the repair of previous damage. However, for Wenar, not all past injustices warrant reparations. Once we have first passed the initial test of demonstrating a past injustice has taken place, we then determine whether or not to finally accept reparations based upon forward-looking considerations. What is important to note is that this decision to award reparations is based upon forward-looking considerations, but only after first satisfying the test of a past injustice. Thus, backward-looking considerations make up an important first part of Wenar's two-tiered theory of reparations. It is not my argument that this theory is unsafe and I find Wenar's arguments both novel and highly compelling. However, the view that this theory is forward-looking -- and not backward-looking -- is not entirely accurate. My brief reply corrects this part of an important new theory of reparations in the hope of strengthening its persuasive power.

Shame punishments have become an increasingly popular alternative to traditional punishments, often taking the form of convicted criminals holding signs or sweeping streets with a toothbrush. In her Hiding from Humanity, Martha Nussbaum argues against the use of shame punishments because they contribute to an offender's loss of dignity. However, these concerns are shared already by the courts which also have concerns about the possibility that shaming might damage an offender's dignity. This situation has not led the courts to reject all uses of shaming, but only to accept shaming within certain safeguards. Thus, despite Nussbaum's important reservations against shame punishments, it may still be possible for her to accept shaming within specific parameters such as those set out by the courts that protect the dignity of an offender. As a result, she need not be opposed to the use of legitimate shame punishment.

Since the end of the Cold War, “ordinary deaths from starvation and preventable diseases” amount to approximately 250 million people, most of them children. Global poverty refuses todecline, as global inequality continues to increase, more than doubling since 1960. Thomas Pogge argues that wealthy states have a responsibility to help those in severe poverty. Thisresponsibility arises from the foreseeable and avoidable harm the current global institutional order perpetrates on poor states. Pogge demands that wealthy states eradicate global poverty, not merely because they have the resources, but because they share responsibility for its continuation. Thus, for Pogge, global poverty is more than a wrong imposed on the poor: it is a violation of human rights and a crime.

In this paper, I aim to demonstrate that Pogge’s conclusions do not follow from his argument. More specifically, if affluent states have a negative duty to assist those in severe poverty, theirduty is not absolute because they are not fully responsible for this poverty. Moreover, if global poverty is one of the greatest crimes against humanity, then it seems inappropriate at best to support proposals, pace Pogge, which leave the guilty parties walking free. We should punish states that cause global poverty.

Perhaps one of the most controversial aspects of Hegel's Philosophy of Right for contemporary interpreters is its discussion of the constitutional monarch. This is true despite the general agreement amongst virtually all interpreters that Hegel's monarch is no more powerful than modern constitutional monarchs and is an institution worthy of little attention or concern. In this article, I will examine whether or not it matters who is the monarch and what domestic and foreign powers he has. I argue against the virtual consensus of recent interpreters that Hegel's monarch is far more powerful than has been understood previously. In part, Hegel's monarch is perhaps even more powerful than Hegel himself may have realized and I will demonstrate certain inconsistencies with some of his claims. My reading represents a distinctive break from the virtual consensus, without endorsing the view that Hegel was a totalitarian.

Mark Bevir's The Logic of the History of Ideas has received considerable attention recently. This article highlights a new problem with his weak intentionalism. Bevir's weak intentionalism holds that on occasion the meanings readers ascribe to texts may trump the meanings the authors express in texts. The article uses the example of Hegel's theory of punishment. The received wisdom is that Hegel is a pure retributivist. Yet, this strays far from his text and stated views. We might think we should keep to this text to uncover Hegel's views. However, Bevir's weak intentionalism has us side with how he has been read over what Hegel has said. This view is problematic as our meanings may well stray far from the texts, words or spirit. Thus, Bevir's weak intentionalism can fall victim to straying from the text when trying to interpret it.

Plato justifies the concentration and exercise of power for persons endowed with expertise in political governance. This article argues that this justification takes two distinctly different sets of arguments. The first is what I shall call his `ideal political philosophy' described primarily in the Republic as rule by philosopher-kings wielding absolute authority over their subjects. Their authority stems solely from their comprehension of justice, from which they make political judgements on behalf of their city-state. I call the second set of arguments Plato's `practical political philosophy' underlying his later thought, where absolute rule by philosopher-kings is undermined by the impure character of all political knowledge. Whereas the complete comprehension of justice sanctions the absolute political power of those with this expertise, partial knowledge of justice disallows for such a large investment of power. Plato's practical political philosophy argues for a mixed theory of governance fusing the institutions of monarchy with democracy in the best practical city-state. Thus, Plato comes to realize the insurmountable difficulties of his ideal political thought, preferring a more practical political philosophy instead.

Robert Cover's well known article Nomos and Narrative is a passionately argued defense of a new way of applying narrative to the philosophy and understanding of law. In my article, I argue that there are four major problems which lie at the heart of Cover's analysis. Each problem addresses a major area of his overall view of law. I try to demonstrate that in each case, if the problem is real, Cover's view of law should be rejected. The primary difficulty is analytical and argumentative sloppiness in Cover's arguments. My conclusion is simple: Cover's view of law is both underdeveloped and theoretically unsafe. It falls victim to each of the four problems I identify. As a result, his philosophy of law should be rejected tout court.

In this journal, Michael Clark defends a "A Non-Retributive Kantian Approach to Punishment". I argue that both Kant's and Rawls's theories of punishment are retributivist to some extent. It may then be slightly misleading to say that by following the views of Kant and Rawls, in particular, as Clark does, we can develop a nonretributivist theory of punishment. This matter is further complicated by the fact Clark nowhere addresses Rawls's views on punishment: Rawls endorses a mixed theory combining retributive and utilitarian features. Of those discussed by Clark, only Scanlon defends the use of nonretributivist punishments. Yet, here too Clark nowhere addresses Scanlon's views on punishment. Thus, Clark's views on retributive punishment are highly problematic.

Hegel's legacy is particularly controversial, not least in legal theory. He has been classified as a proponent of either natural law, legal positivism, the historical school, pre-Marxism, postmodern critical theory, and even transcendental legal theory. To what degree has Hegel actually influenced contemporary legal theorists? This review article looks at Michael Salter's collection Hegel and Law. I look at articles on civil disobedience, contract law, feminism, and punishment. I conclude noting similarities between Hegel's legal theory and that of Ronald Dworkin. I also criticize the volume's emphasis on Hegel's postmodern credentials, all of which I doubt.

In both Great Britain and the United States there has been a growing debate about the modern acceptability of jury nullification. Properly understood, juries do not have any constitutional right to ignore the law, but they do have the power to do so nevertheless. Juries that nullify may be motivated by a variety of concerns: too harsh sentences, improper government action, racism, etc. In this article, I shall attempt to defend jury nullification on a number of grounds. First, I discuss the use of general verdicts and reject their replacement in criminal trials by special verdicts. Second, I examine verdicts based upon mistakes and racial prejudice, turning my attention to perverse verdicts and the question of whether or not juries are guilty of legislating when nullifying the law. Finally, I look at the problem of the awarding of excessive damages by juries. My goal will be to provide a sound theoretical defence of the practice of jury nullification.

This article offers a justification for the continued use of jury trials. I shall critically examine the ability of juries to render just verdicts, judicial impartiality, and judicial transparency. My contention is that the judicial system that best satisfies these values is most preferable. Of course, these three values are not the only factors relevant for consideration. Empirical evidence demonstrates that juries foster both democratic participation and public legitimation of legal decisions regarding the most serious cases. Nevertheless, juries are costly and, therefore, economically less efficient than competing modes of trial. I do not argue that all human beings possess an inalienable legal right to be tried by a jury. However, it is my hope that this analysis will make clear what we might gain or lose when we propose jury reforms.

This article argues that even if we grant that murderers may deserve death in principle, retributivists should still oppose capital punishment. The reason? Our inability to know with certainty whether or not individuals possess the necessary level of desert. In large part due to advances in science, we can only be sure that no matter how well the trial is administered or how many appeals are allowed or how many years we let elapse, we will continue to execute innocent persons for as long as we legalize capital punishment. Thus, on grounds of desert, this article argues that retributivists should oppose capital punishment.

Hans-Martin Jaeger argues in this Journal that Hegel endorses a ‘reluctant realism’, whereby Hegel's theory of international politics institutionalises a transnationalising civil society of states. In Jaeger's view, Hegel's conception of individuals in civil society is analogous to states in international politics. On the contrary, I argue Hegel's conception of abstract right is far more commensurable with his theory of international politics. The mutual recognition existing in civil society – which helps to produce legal relationships – does not exist beyond the state where there are no legal relationships. Thus, Hegel is a realist of a more familiar sort, without any ‘reluctance’.

Green agrees with Kant on the abstract character of moral law as categorical imperatives and that intentional dispositions are central to a moral justification of punishment. The central problem with Kant's account is that we are unable to know these dispositions beyond a reasonable estimate. Green offers a practical alternative, positing moral law as an ideal to be achieved, but not immediately enforceable through positive law. Moral and positive law are bridged by Green's theory of the common good through the dialectic of morality. Thus, Green appears to offer an alternative that remains committed to Kantian morality whilst taking proper stock of our cognitive limitations. Unfortunately, Green fails to unravel fully Kant's dichotomy of moral and positive law that mirrors Green's solution, although Green offers a number of improvements, such as the importance of the community in establishing rights and linking the severity of punishment to the extent that a criminal act threatens the continued maintenance of a system of rights.

The most widespread interpretation amongst contemporary theorists of Kant's theory of punishment is that it is retributivist. On the contrary, I will argue there are very different senses in which Kant discusses punishment. He endorses retribution for moral law transgressions and consequentialist considerations for positive law violations. When these standpoints are taken into consideration, Kant's theory of punishment is more coherent and unified than previously thought. This reading uncovers a new problem in Kant's theory of punishment. By assuming a potential offender's intentional disposition as Kant does without knowing it for certain, we further exacerbate the opportunity for misdiagnosis – although the assumption of individual criminal culpability may be all we can reasonably be expected to use. While this difficulty is not lost on Kant, it continues to remain with us today, making Kant's theory of punishment far more relevant than previously thought.

Imagine there are three boats equidistant from one another. You are alone in the first boat. The other two boats are sinking fast: one boat has one person (A), the other has two persons (B&C). There is only enough time to allow saving either A or B&C before their boats sink, drowning whoever is onboard. Will we always combine claims of those wishing to be saved and rescue B&C? Otsuka says that the 'Kamm-Scanlon' contractualist framework that does not aggregating various claims for rescue combines claims in this example. Otsuka has been criticized by Hirose and Kumar. Here I offer a defense.

David Miller raises a number of interesting concerns with both weak and strong variants of cosmopolitanism. As an alternative, he defends a connection theory to address remedial responsibilities amongst states. This connection theory is problematic as it endorses a position where states that are causally and morally responsible for deprivation and suffering in other states may not be held remedially responsible for their actions. In addition, there is no international mechanism to ensure either that remedially responsible states offer assistance to particular states nor some level of accountability for causally and/or morally responsible states. I suggest that an intermediary theory of cosmopolitanism offers one way of overcoming these difficulties.

Vittorio Bufacchi argued in this journal that democracy was under threat from two extreme philosophical positions: totalitarianism and nihilism. Sandwiched between these polarities is liberal democracy. Bufacchi believes that one of liberal democracy's distinctive properties is an endorsement of scepticism, which he then attempts to illuminate. In contrast, this article will argue that an authoritarian government bound by a constitution permitting civil liberties might also adopt political scepticism. This removes the aforementioned distinctiveness of liberal democracy in this regard and, in addition, leads us toward a rethinking of the possibility of a more plausible consideration of democracy.

Mahadeviyakka was a radical 12th century Karnataka saint of whom surprisingly little has been written. Considered the most poetic of the Virásaivas, her vacanas are characterized by their desperate searching for Shiva. I attempt to convey Mahadevi's epistemology and its struggle to 'know' Shiva, necessitating a lifetime of searching for him; offer an interpretation of the innate presence of Shiva in the world and its consequences for epistemology; and explore the sense of tragic love inherent in devotional searching for Shiva. My primary goal is to offer a powerful and positive, yet critical, interpretation of Mahadevi's beautiful prose on her relationship with Shiva.

The purpose of this essay is to critically appraise J. Angelo Corlett's recent interpretation of Kant's theory of punishment as well as his rejection of Hegel's penology. In taking Kant to be a retributivist at a primary level and a proponent of deterrence at a secondary level, I believe Corlett has inappropriately wed together Kant's distinction between moral and positive law. Moreover, his support of Kant on these grounds is misguided as it is instead Hegel who holds such a distinction. Finally, I attempt to refute the almost timeless retributivist rejection of deterrence-based theories of punishment on the grounds that the latter somehow would condone in some cases the punishment of innocent persons. These individuals almost always demand that no innocent person be punished as a rule of the highest order.

Thursday, July 09, 2009

Some readers may not have seen an earlier piece I wrote in the Times Higher (UK) defending the jury trial. This piece can be found here. My edited collection, The Right to a Fair Trial, will be published by Ashgate in September.

I must thank the incredibly helpful staff at Balliol College, Oxford's library, especially Penelope Bullock and Alan Tadiello. Over the past year, I have been consulting their collection of papers by Thomas Hill Green in preparation of a few articles and a book project. It has been a real pleasure to work at Balliol and I am most grateful for their continued encouragement and help.

Saturday, July 04, 2009

============="[. . .] Thom Brooks, reader in political and legal philosophy at Newcastle University, said: "While I am always delighted to hear ministers praise the importance of the arts and humanities, I am sceptical about how this will all come out in the wash."

He questioned why the Government had protected science and technology in the last research assessment exercise at the expense of research in the arts and humanities. "It is one thing to praise, but quite another to fund," he said. [. . .]"=============

Wednesday, July 01, 2009

"My Lords, I thank the noble Lord, Lord Jay of Ewelme, for securing and introducing the debate. I extend a particularly warm welcome to my noble friend Lady Kinnock of Holyhead. She brings to this House great experience, wisdom and courage as well as a fine record of commitment to the cause of justice.

I endorse the United Nations report on the responsibility to protect. It identifies four major evils and tries to tell us how to anticipate and deal with them. These evils are genocide, war crimes, ethnic cleansing and crimes against humanity. I have nothing against the doctrine of responsibility to protect. In fact, I endorse it wholeheartedly. However, as the document is formulated, there are important gaps. I will briefly highlight five of them, and hope that the Minister will feed them into the appropriate channels.

First, those four evils overlap. It is not easy, for example, to distinguish between genocide and crimes against humanity or between genocide and war crimes. Equally importantly, these evils arise differently. Some arise because the state is evil. Others arise because the state has collapsed. In one case, the state is responsible, in the other, the absence of the state is responsible. These two situations need to be distinguished because they call for two kinds of responses. The United Nations document tends to homogenise them and fails to appreciate the need for different strategies.

Secondly, we need to evolve a global consensus on what obligations and responsibilities the outside world has. We tend to assume that the West, or the world at large, has the responsibility to intervene in situations of this kind. There are major powers that take a different view because they have suffered at the hands of the West's doctrine of intervention. China, for example, places great responsibility on the doctrine of sovereignty and does not think that it is its business to interfere when evils of this kind occur. The Chinese have made that very clear in their official policy documents. To some extent, India has tended to take this view as well, because it does not want outside powers to interfere in Kashmir or with lots of other internal problems.

The United Nations document makes the mistaken assumption that there is already a universal consensus on intervening in situations of this kind. That is arrogant and presumptuous. We must develop a global consensus by encouraging a dialogue between the western and Chinese points of view. Both make important points. Unless we do so, we will be working at cross purposes.

The third point that needs some attention is the document's total absence of mention of the need to restructure the United Nations. The United Nations as it is constituted, its structure and procedures, reflect the world of the late 1940s. It is dominated by the Security Council, where five members have the right of veto. The United Nations is seen as just another stage for its members to pursue their national interests. It should become a genuinely global forum where members deliberate in a calm and disinterested manner and reflect the viewpoint of humanity at large. If the United Nations is to carry moral and political authority it will need to be far more representative than it is. Muslim voices and the voices of other developing countries need to be given greater prominence. I should also have thought that the United Nations would benefit greatly if it had a standing commission keeping a global watch on the world at large and alerting the world community to potentially dangerous situations.

Fourthly, in situations of the four evils that we talked about, military intervention sometimes becomes necessary. No one can deny that. But military intervention cannot be the first course of action. When it is undertaken, it needs to be guided by an appropriate ethics, which is absent.

There should be clear guiding principles as to when it should be undertaken to ensure consistency in international action. It should be authorised by the United Nations and well judged, because military intervention works in certain situations and not in others. It would not work in Myanmar or Burma today and it would not have worked against Zaire under Mobutu. When the legality of military intervention is in doubt, as it was in the case of Iraq, we should make it a point of law to refer to the International Court of Justice, which would have helped us greatly in the case of Iraq. The purpose of military intervention should be not to run the country or discipline the natives and sort them out but rather to restore normalcy and hope that over time the country, now handed over to its citizens, will be able to manage its own affairs.

My fifth and final point is to do with the need to explore non-military forms of intervention. We have got into a binary opposition: either we abstain and do nothing, or we move in with armed forces. Is there no other way; no middle space that we should be exploring? I should have thought that there are half a dozen ways that we could move in such situations. Countries involved in these four evils could be expelled from international bodies, or recognition given to them in international law can be withdrawn temporarily. We could involve other agencies in civil society—for example, the churches, which wield enormous power. I am struck by the fact that the Buddhist monks endorsed the murder of Pol Pot or that the Vatican itself stayed quiet in relation to Rwanda. [. . .]

My Lords, I want to end by saying that we need to explore non-military forms of intervention."

Thom Brooks

About Me

I'm Professor of Law and Government at Durham University's Law School. I'm also Associate Member of the Philosophy Department. I'm originally from New Haven, Connecticut and currently a Visiting Fellow at Yale Law School. I've previously held visiting positions at Oxford, St Andrews and Uppsala and previously taught at Newcastle University. I'm founding editor of the Journal of Moral Philosophy which I started in 2003 while a graduate student.

My current research interests are immigration law and policy (esp citizenship) and sentencing law and policy (esp theories of punishment and the use of sentencing guidelines). I'm also working on the capabilities approach and global justice as well as my longstanding interests in the work of Hegel and the British Idealists.